March 20, 2012 – A recent decision by the Wisconsin Supreme Court to dismiss a case against Wisconsin’s Government Accountability Board (GAB) means a federal court may soon decide the constitutionality of GAB’s amended regulations on political speech.

In July 2010, GAB amended a rule – Wis. Admin. Code GAB 1.28 – that regulates certain forms of political speech. GAB oversees and administers state election and campaign finance laws.

In general, organizations and individuals are subject to GAB 1.28 if they make contributions, accept contributions, or make disbursements “for a political purpose.” The amendments relate to the types of “communication” considered to be made “for political purposes.”

In August 2010, the Wisconsin Supreme Court temporarily halted enforcement of the amendments upon petition in Wisconsin Prosperity Network Inc., et al. v. Myse. In November 2010, it took original jurisdiction of the case, and heard oral arguments in September 2011.

But on Monday (March 19), the state supreme court vacated its temporary injunction order and dismissed the case. That means GAB can enforce amendments to GAB 1.28, unless a federal court halts enforcement and proceeds to decide the merits of the case, which it may now do.

Two federal cases – Wisconsin Right to Life, Inc. et al. v. Myse and Wisconsin Club for Growth v. Myse – are pending in the western and eastern districts of Wisconsin. Those cases were delayed pending a decision by the Wisconsin Supreme Court.

State case dismissed

The Wisconsin Supreme Court unanimously (6-0, J. Prosser did not participate) ruled to vacate its temporary injunction, but forced a dismissal on the vote of three justices.

Chief Justice Shirley Abrahamson, and Justices Ann Walsh Bradley and Patrick Crooks, agreed that amendments to GAB 1.28 are not facially unconstitutional under the U.S. and Wisconsin constitutions, and would have decided the case on the merits.

But Justices Patience Roggensack, Annette Ziegler, and Michael Gableman thought dismissal was appropriate because original jurisdiction was “improvidently granted.” However, the dismissing justices did not explain why original jurisdiction was improvidently granted.

That prompted a concurring opinion from the chief justice. “Because the three justices do not explain their vote for dismissal, we are left to wonder why they now fail to address the merits of the petition,” she wrote, noting the vote for dismissal “is very surprising.”

Arguments

The petitioners had argued that GAB’s amendments “removed a longstanding (and constitutionally required) limitation of regulation to only those communications that expressly advocate the election or defeat of a candidate,” so-called express advocacy.

“For the first time in Wisconsin elections, any pre-election reference to a candidate’s qualifications or any support or criticism of his or her positions or record would bring the speaker within the State’s regulatory web,” the petitioners stated in their original brief.

Such an expansion would force these “issue-based” or “non-express advocacy” speakers, commonly political action committees (PACs), to comply with registration, reporting, and disclaimer requirements under the state’s campaign finance laws, Wis. Stat. ch. 11.

For instance, Wis. Stat. section 11.30 requires regulated political communications to include disclaimers identifying the sponsor of the communication and its independent nature.

The petitioners, including Wisconsin Prosperity Network Inc. and the John K. McIver Institute for Public Policy – conservative interest groups that publish and disseminate information – argued that requiring persons and organizations to comply with campaign finance laws for communications not tethered to any candidate unconstitutionally restricts free speech.

The petitioners invoked the controversial U.S. Supreme Court case of Citizens United v. Federal Elections Commission, 130 S. Ct. 876 (2010), to argue that the government cannot burden free speech unless preventing actual quid pro quo corruption or its appearance.

“Restricting the ability of persons to convey a message by limiting their capacity to spend money to craft and disseminate it raises grave constitutional questions and is subject to strict scrutiny,” the petitioners argued in their brief, among other arguments.

However, GAB argued, through its Wisconsin Department of Justice lawyers, that amendments to GAB 1.28 do not impermissibly regulate non-express advocacy, among other arguments.

“Petitioners are wrong both because the definition of communication for a political purpose in GAB 1.28(3) does not apply to non-express advocacy and because, even if it did, it still would not be overbroad,” the respondent GAB argued in a reply brief.

A federal court will likely decide whether to impose a temporary injunction on GAB 1.28 amendments for a decision on the merits, now that the Wisconsin Supreme Court has dismissed the state case.

By Joe Forward, Legal Writer, State Bar of Wisconsin